Saving the CJS, one protocol at a time …

Introduction

Following a discussion on the SUKJ Facebook page as to what defence lawyers can do, I’ve had a bash at a ‘Protocol’ that all defence lawyers can sign up to as to how cases should be conducted. This recognises that we have a duty under the CPR to ensure the efficient use of Court resources and to minimise disruption to complainants, defendants and other witnesses. We have repeatedly tried to engage the MoJ with this, and have been repeatedly ignored. In light of that, it seems that we need to take action to resolve this.

It may be that some of this seems extreme, but the CJS is collapsing around us. We are not just a cog in a justice-processing machine, we have a response to act. Much has been said about ‘efficiencies’ and reducing hearings by the MoJ and the judiciary, but no action. All the suggestions from the defence have gone ignored. For that reason it falls to defence lawyers to improve the CJS unilaterally.

Going Forward

This is something bashed out on my laptop on the way to Court. Some of it is sensible, some not. Some will work, some won’t. It’s supposed to be a starting point for a discussion. Please add any thoughts below the line and let’s see if we can come up with a Protocol that we can all agree with?   Down load here – Protocol For Crown Court Cases – or I’ve cut and pasted it below :

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Defence Protocol for Crown Court Work

Introduction

The current situation in the Crown Court is worsening rapidly. It is clear that the system is underfunded and is rapidly grinding to a halt. It is being kept together by the goodwill of many of the participants, such goodwill being repeatedly abused and ignored.

The Criminal Procedure Rules place obligations on all parties, including defence lawyers, to ensure that the system works properly. All defence lawyers understand and respect that, and have a duty to the Court to ensure that it acts efficiently and in the interests of all participants. Further, defence lawyers understand that their duties are not just to their client, or to the Court, but to complainants and witnesses as well.

We remind ourselves, in particular, of the following parts of the CPR :

The overriding objective

1.1(2) Dealing with a criminal case justly includes―

(b) dealing with the prosecution and the defence fairly;

(d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;

(e) dealing with the case efficiently and expeditiously;

(g) dealing with the case in ways that take into account― (iv) the needs of other cases.

The duty of the participants in a criminal case

1.2.—(1) Each participant, in the conduct of each case, must―

(a) prepare and conduct the case in accordance with the overriding objective;

(b) comply with these Rules, practice directions and directions made by the court; and

(c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.

One of the core issues is the lack of an effective sanction where a case is ineffective. The case of R (Bolton) v CPS [2012] EWHC 3750 (Admin) confirms that there is no cost sanction in many cases against the CPS. Further, it is clear that repeated injunctions by the judiciary for the CPS to ensure compliance have failed.

Defence lawyers have repeatedly raised issues realting to case management, use of resources, and the like, to no avail. Further, the funding regime means that delays and inefficiencies impact particularly on defence lawyers. Despite the impact on the Criminal Justice System as a whole being a constant issue for the defence, the MoJ have declined to address these issues.

Last year the CPS, MoJ and Judiciary in London agreed an ‘Early Guilty Plea Protocol’ (in the absence of the defence) that caused all cases to be listed for a Preliminary Hearing.

In light of that, and pursuant to our obligations under the CPR as set out above, defence lawyers (barristers and solicitor-advocates) in the Crown Court adopt this Protocol to ensure that, as far as we can, the principles of the CPR are upheld.

The Concept of the Instructed Advocate

A cornerstone of the Carter reforms was that each case should have an Instructed Advocate (‘IA’) – somebody who would take charge of the case and ensure that every case is a managed case. Integral to that is that the IA should attend every time that the case is listed.

Since 2007, the need for this, given the extra burden imposed by the CPR, has increased greatly. At the same time public funding has been cut to such an extent

Defence practitioners support the idea of the IA and agree that it is the best way of ensuring the Over-riding objective is met, and that the Courts proceed efficiently. To that end, the Protocol is intended to further the principle of the IA at all stages.

Specific Hearings

In order to further the overriding objective of the CPR and to ensure the least inconvenience for complainants, witnesses, defendants and legal representatives, the following protocol is adopted by defence advocates in relation to the hearings and scenarios set out below:

Preliminary Hearings

The current practice of listing every case for a Preliminary Hearing is currently being revised. Until that new protocol is issued then, recognising that a decision to list every case is contrary to the specific terms of the CPR and Crim PD, defence advocates will not attend a Preliminary Hearing unless there is a specific reason, such as it being a case likely to last over ten days, or there is to be a guilty plea.

PCMHs

The PCMH is the most important pre-trial hearing, and can shape the whole course of the case. It is therefore vital that papers are prepared in advance and that IAs from both prosecution and defence attend and are available to speak in advance if needed.

The date must therefore be set for the availability of the IA. If this is not done, and the IA is not available, then the IA will email the Court and CPS a witness list and a list of proposed directions, and will not attend the hearing.

It is now the general practice for a Defence Statement to be required (if one is to be served) at or before the PCMH. For this reason, there is normally a direction that the Papers (including disclosure) is served a month before the PCMH.

To ensure that the PCMH is effective, the full papers must be received at least seven days before the hearing, so that instructions can be taken and a Defence Statement provided. Delays in service by the CPS causes various knock on effects, especially where a defendant is in custody and a prison visit has to be cancelled.

If papers are not received a week in advance (by 4.30pm the day before one week before the PCMH so, for a PCMH on a Wednesday, they must be received by 4.30pm the Tuesday of the week before), then the Court will be informed that the PCMH will have to be re-arranged and if the matter remains listed then the defence advocate will not attend.

Bail Applications/Variations

A fully contested application for bail, or a variation of bail, is a hearing that needs to be heard in court, with the IA in attendance.

It is too often the experience of advocates that an application is made administratively that is not responded to but, when the matter is aired at Court, this was an oversight by the CPS.

For that reason, the CPS should be invited to serve a written notice at the end of the day two days prior to the listed date of the bail application stating on what grounds the application is opposed. If this is not received, then the matter should be listed in the morning of the planned day, but with no parties in attendance, for the application to be granted.

If the matter is, in fact, opposed, then the CPS will have to attend on that date and provide an explanation of the grounds of opposition. The case can then be listed the next day inter partes.

Although it is undesirable for this hearing to proceed without the guaranteed attendance of the IA, these cases are frequently ones that need to be dealt with as a matter of urgency.

Disclosure

As has been said repeatedly, disclosure is at the centre of a fair trial (H [2004] UKHL 3). The rules are clear – once a Defence Statement has been served the obligation is on the Prosecution to respond, and to do so within 28 days.

It is the universal experience that this is not complied with by the CPS. Sometimes there are delays, sometimes a complete failure. Even if this does not mean that there can not ultimately, be a fair trial, it causes a knock on effect on other cases as time is wasted listing the case in Court (causing other cases to be put back) and by litigators having to chase the CPS.

Remembering that the responsibility to complete disclosure is on the CPS, in future the defence will send one letter to the Court and CPS reminding the latter of their obligation and drawing the attention of the former to the issue.

Following that, the defence will consider that any directions made at the PCMH or otherwise relating to them to be withdrawn until the failure has been remedied.

Additionally, the defence will not attend any further listings of the case until the deflect in disclosure is remedied. The exceptions being if a defendant is in custody where the defence will attend (1) a trial to see what, if anything, can be achieved, and (2) an application to extend custody time limits.

Mentions

It is accepted that it is sometimes necessary for cases to be listed for mention. Barring exceptional circumstances (such as a Judge falling ill with a trial listed to be started the next day in front of them), these should always be notified at least 48 hours in advance.

This should be sufficient time for both parties to confirm that the mention is, in fact, needed. It is the experience from the CBA’s ‘No Returns’ action in March 2014 that many mentions were, in fact, unnecessary and/or could be dealt with administratively.

For example, cases are frequently listed for mention in order for a new date to be fixed. This is wholly unnecessary, and is contrary to the Practice Direction. Defence lawyers will no longer attend such hearings, but will instead email their dates to avoid to the List Office.

Unless a case has to be listed on an urgent basis as set out above, with reasons for the listing being sent to the advocate and/or the litigator, a mention should be listed after consultation with the IA and a date set where the IA is available. If this is not done, then the defence will not be in attendance at the hearing.

Sentencing

A sentencing hearing is often one of the most complicated and important parts of a case. If the need for an IA was important in 2006, it is all the more so now as sentencing gets more and more complicated.

The basic rule is that, unless there are exceptional circumstances, the IA must attend the sentencing hearing. Courts must set a date that is convenient for the defence advocate and, wherever possible, the prosecution advocate.

If the defence advocate is likely to be in a long trial, then the sentence should be listed on a Friday so that the advocate can be released (bearing in mind that if they are not released, then that defendant will be unrepresented.

There are already problems with Pre-Sentence Reports not being ready and this is likely to be exacerbated following the further reforms to the Probation Service. In light of that, an advocate will not attend a sentencing hearing unless the Pre-Sentence Report has been sent to the advocate or litigator by 4.30pm one clear working day prior to the sentence (so, for example, by 4:30pm on Wednesday for a Friday hearing).

If the above is not complied with, then the sentence will have to be re-arranged administratively for a convenient date.

Moving dates

It is recognised that, unfortunately, cases listed with a fixed date (for mention, trial or other hearing) need to be moved for unforeseen reasons.

If that happens then it is expected that all parties will be notified as soon as reasonably practicable. When fixing a new date, then this must be done for the convenience of the IA, unless released on writing.

If this is not done, then the defence will not attend the renewed date, unless the IA is available.

Timings

It is generally desirable for cases, when being adjourned to a new date, to be given a morning or an afternoon listing. This enables the Court to be more efficient as the IA can attend two hearings a day rather than one.

To that end, the IA should ask for a case to be listed on the morning or afternoon. If the Judge declines to do so, then the IA will notify the Court that if there is a clash of listings, then the IA will choose which is the most important one to attend and will not be in attendance in the other case, and cover will not be provided.

If the case has been given a morning or afternoon listing, and is changed without consultation, then the Court shall be informed that the defence will not be in attendance, nor will cover be provided, unless the IA is available.

Use of Video Link

Much greater use should be made of video link for inter-Court hearings. As an example, where defence counsel has a sentence in Isleworth listed on a Friday, but is part-heard in Woolwich, then the sentence can be conducted at 4pm by video link, allowing Woolwich to sit through until 3.30pm or later, rather than rising at half past twelve and wasting the whole afternoon.

Warned Lists

Warned list cases are inherently undesirable as they create great uncertainty and anxiety for the complainants, witnesses and defendants. Further, they run contrary to the principle of the Instructed Advocate.

However, it is accepted that it is inevitable that there is a need to have certain trials in a ‘warned list’, rather than as a fixture to accommodate late and unexpected gaps in the Court list, and maximise efficiency.

In light of the above, and that a case that is brought in off a warned list will not have a fixed advocate until the night before, there are certain cases that are unsuitable for warned list.

Specifically, the following features would make a case unsuitable for a warned list

  • Cases with a vulnerable victim

  • Cases with a youth defendant

  • Cases where there is likely to be (or it is desirable for there to be) admissions

  • Cases where there is likely to be legal argument

  • Cases that are listed for more than 3 days

  • Cases where a defendant has elected Crown Court trial

In such a case, the Court should be invited to give the case a fixed date. If the Court does not do so, then they should be warned that, in the absence of proper remuneration and/or any semblance of a guarantee that the IA can conduct the main hearing, they cannot guarantee that the IA is available and that, if the IA is unavailable, no cover will be provided by the defence.

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2 thoughts on “Saving the CJS, one protocol at a time …

  1. Hi Dan. Very comprehensive. Interesting what you propose about PSR’s. In readiness for a slightly complicated case on Monday and in the spirit of efficiency I today asked Probation to CJSM email me the psr for a mags court sentencing. They refused. A manager has told me the psr is to go to the court and it is not to be sent to solicitors. Thus if this is true nationwide you won’t get them in advance. I am minded now to wait for the bench to come in and make an application to the court to release a copy of the precious report to me. I wonder when they will start charging us for a copy? Regards, Chris

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